Daker v. Comm'r, Ga. Dep't of Corr.

• Citation: 820 F.3d 1278
• Decision Date: 04 May 2016
• Docket Number: No. 14–12139.,14–12139.
• Parties: Waseem DAKER, Plaintiff–Appellant, v. COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, et al., Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

820 F.3d 1278

Waseem DAKER, Plaintiff–Appellant
v.
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, et al., Defendants–Appellees.

No. 14–12139.

United States Court of Appeals, Eleventh Circuit.

May 4, 2016.

820 F.3d 1280

Waseem Daker, Reidsville, GA, pro se.

Laura Bunten, Jason Burnette, Walter Davis, Meredith Kincaid, Jones Day, Atlanta, GA, for Plaintiff–Appellant.

Elizabeth McRary Crowder, Samuel Scott Olens, Attorney General's Office, Atlanta, GA, for Defendants–Appellees.

Appeal from the United States District Court for the Middle District of Georgia.

820 F.3d 1281

Before WILLIAM PRYOR, ANDERSON, and PARKER,^* Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

This appeal presents a question of first impression about the “three strikes” provision of the Prison Litigation Reform Act, which ordinarily denies in forma pauperis status to a prisoner who “on 3 or more prior occasions” brought a federal action or appeal that “was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,” 28 U.S.C. § 1915(g). Waseem Daker is a state prisoner and a serial litigator in federal courts. Daker has submitted over a thousand pro se filings in over a hundred actions and appeals in at least nine different federal courts. In this lawsuit, the district court denied Daker's petition to proceed in forma pauperis because it concluded that he had six strikes under the Act. Two of Daker's earlier filings were dismissed for lack of jurisdiction, and the other four were dismissed for want of prosecution. In three of the four dismissals for want of prosecution, a judge of this Court determined that Daker could not proceed in forma pauperis because his filings were frivolous. But a single circuit judge cannot dismiss an action or appeal, Fed. R. App. P. 27(c) ; instead, panels of this Court dismissed Daker's filings because he failed to pay the filing fee, 11th Cir. R. 42–1(b). Although Daker is a serial litigant who has clogged the federal courts with frivolous litigation, we must follow the text of the Act, which does not classify his six prior dismissals for lack of jurisdiction and want of prosecution as strikes. We vacate the dismissal of Daker's complaint and remand for further proceedings.

I. BACKGROUND

Waseem Daker is a Georgia prisoner serving a life sentence for murder. He was convicted in October 2012 after unsuccessfully representing himself at trial. Daker was in jail awaiting trial from 2010 to 2012, and he was in prison for aggravated stalking from 1996 to 2005.

In November 2012, Daker filed his current lawsuit against the Commissioner of the Department of Corrections and other officials for various violations of his civil rights. Along with his complaint, Daker filed a petition to proceed in forma pauperis. He also asked for a preliminary injunction requiring the prison to give him access to a law library.

In his petition to proceed in forma pauperis, Daker attested that he is indigent and cannot afford the filing fee. He swore that he has been unemployed since 2010, earned no income in the last year except for a $50 loan from his brother that the prison seized immediately, and has $0 in his checking, savings, and prison accounts. In terms of his assets, Daker disclosed that he owns a house that he purchased for $395,000 in 2005. Although his family still lives there, Daker attested that the house has “lost value” and that he is “unable to make [the] mortgage payments.” As for his debts, Daker alleged that he owes $345,000 on his mortgage, $25,000 in student loans, $36,000 in attorney's fees, and $2,000 to the prison.

The Commissioner filed a motion to dismiss the complaint. The Commissioner argued that Daker is ineligible to proceed in forma pauperis for two reasons: he had

820 F.3d 1282

at least three strikes under the Act when he filed his complaint and he is not indigent.

The Commissioner identified six previous filings by Daker. Two were dismissed for lack of jurisdiction: Daker v. Head, No. 01–14624 (11th Cir. Jan. 25, 2002), an interlocutory appeal from a civil lawsuit that this Court dismissed “for lack of jurisdiction”; and Aziyz v. Tremble, No. 05–11696 (11th Cir. May 9, 2005), an interlocutory appeal from a civil lawsuit that this Court dismissed “for lack of jurisdiction.” Four were dismissed for want of prosecution: Daker v. Barrett, No. 03–15771 (11th Cir. July 26, 2004), an appeal from a civil lawsuit that this Court dismissed “for want of prosecution because [Daker] has failed to file [an] appellant brief within the time fixed by the rules”; In re Daker, No. 12–12073 (11th Cir. July 12, 2012), a petition for a writ of mandamus that this Court dismissed “for want of prosecution” under Eleventh Circuit Rule 42–1(b) “because ... Daker failed to pay the $450 docket fee ... within the time fixed by the rules”; In re Daker, No. 12–12072 (11th Cir. Aug. 6, 2012), a petition for a writ of mandamus and habeas corpus that this Court dismissed “for want of prosecution” under Rule 42–1(b) “because ... Daker failed to pay the $450 docket fee ... within the time fixed by the rules”; and Georgia v. Daker, No. 12–12519 (11th Cir. Nov. 5, 2012), an appeal from a remand order that this Court dismissed “for want of prosecution” under Rule 42–1(b) “because ... Daker has failed to pay the filing and docketing fees ... within the time fixed by the rules.” In the last three dismissals, a single judge of this Court denied Daker's petitions to proceed in forma pauperis because his filings were “frivolous.”

The Commissioner also submitted material to prove that Daker could not proceed in forma pauperis because he is not indigent. The Commissioner submitted a “Zestimate” from Zillow.com, which valued Daker's house at $489,217—contradicting his assertion that his house has “lost value.” The Commissioner also submitted a report and recommendation from Magistrate Judge Scofield in a separate case. Judge Scofield stated that Daker owns a house “worth substantially more than its mortgage.” Judge Scofield also doubted that Daker's other debts were real because Daker never disclosed them in his previous petitions to proceed in forma pauperis. Daker's alleged debt for attorney's fees was “all the more dubious,” according to Judge Scofield, “because Daker represented himself at his murder trial, and the court-appointed backup counsel were court-paid.”

On February 25, 2014, a magistrate judge agreed with both of the Commissioner's arguments and recommended denying Daker's petition to proceed in forma pauperis. The district court adopted the report and recommendation of the magistrate judge on March 24, 2014. The district court stated that Daker “ha[d] not filed an objection” to the report of the magistrate judge. Because Daker could not proceed in forma pauperis and had not paid the filing fee, the district court dismissed his complaint without prejudice. It also denied his request for a preliminary injunction because Daker provided “no facts regarding his current access to legal materials” and no explanation of how he suffered an injury.

Although the district court concluded that Daker had not objected to the report and recommendation of the magistrate judge, Daker had objected in a filing dated March 13, 2014. The district court missed this filing because it did not arrive until April 4, 2014—11 days after the district court dismissed Daker's complaint. In the March 13 filing, Daker objected to the

820 F.3d 1283

report and recommendation of the magistrate judge on several grounds. With respect to his indigence, Daker argued that the magistrate judge should not have relied on the report from Judge Scofield because it was an “extrajudicial” source. He also disagreed with the suggestion by Judge Scofield that he did not owe attorney's fees; Daker alleged that the state court required him to “reimburse the county for court-appointed counsel” as part of his sentence. Daker further objected to the Zestimate from Zillow.com because it was unreliable and “inflated.” Contrary to the Zestimate, Daker argued that comparable houses in his neighborhood had recently sold for $330,000, $320,000, $285,900, $310,000, $285,000, and $290,000—all less than the $345,000 he owes on his mortgage. Finally, Daker cited several orders in which other courts found that he was indigent on “the same facts” he alleged in his current petition.

II. STANDARDS OF REVIEW

We review the denial of a petition to proceed ...